The White House Administration recently announced it will no longer defend in court key parts of at the Affordable Care Act (ACA), specifically protections for people with pre-existing conditions. The possibility that states may do away with safeguards for pre-existing conditions would have serious ramifications for the overall marketplace and the quality of life for millions of Americans.

Director of State Advocacy and Alliance Development for U.S. Pain Shaina Smith recently sat down with U.S. Pain ambassador-advocate Dania Palanker to discuss the situation. Palanker currently is assistant research professor at the Center on Health Insurance Reforms (CHIR) at Georgetown’s Health Policy Institute. As someone who analyzes state and federal health insurance market reforms, including the implementation of the ACA, Palanker understands the insurance benefit design and coverage for health conditions. As an individual who lives with chronic pain, Palanker also has a personal stake in the matter.

We asked Palanker to weigh in on the current state of the nation’s health care system in the wake of the Department of Justice’s (DOJ) decision to not defend key components of the ACA in court.

Q1: Why is it that, after several failed attempts to repeal the ACA, we’re seeing this new approach to changing it?

A1: There have been repeated attempts to repeal the Affordable Care Act in Congress and in the courts and each effort has failed to repeal the vast majority of the law. At a certain point, it seems we would just all recognize that the Affordable Care Act is the law of the land, but there are certain people – including politicians and policymakers – that refuse to give up the fight against the law. Some may come down to a desire to prove to a political base that opposes the law that they are following through with a commitment. But I think the larger issue is an ideology that we should not subsidize care for people who are sick or injured. It is part of the mythology of America that anybody deserving can be self-sufficient if they just try hard enough – a mythology that leaves out a reality that much of our lives, including chronic illness, is out of our control.

Q2: Can you explain why the provision that currently protects Americans with pre-existing conditions is the target for the White House Administration’s latest court filing?

A2: One would think the Administration would not target protections for people with pre-existing conditions because these are so popular with voters. But there is also a repeated message that comes out from people opposing preexisting condition protections that blames people who have chronic illness for poor lifestyle choices. This seems ludicrous to those of us who live with chronic pain, but it must resonate with some people or the message would have disappeared. Another piece is that undoing the pre-existing condition protections would unravel many aspects of the law. It could effectively fulfill the Administration’s goal of repealing at least the private insurance provisions of the law.

Q3: The federal court brief filed by the DOJ argues that the ACA is unconstitutional due to the 2017 Tax Cuts and Jobs Act, which removed the tax penalty for failure to have health insurance as part of the individual mandate. If found unconstitutional by the court, what would this decision mean for those who rely on health care coverage to manage their condition?

A3: To begin with, the lawsuit itself, filed by Texas and 20 other state attorneys general, and DOJ brief are based on very shaky legal ground. There are numerous problems with the legal arguments, ranging from the claim that the federal government must receive revenue to use its taxing power to the idea that Congress did not intentionally leave the pre-existing condition protections when repealing the mandate penalty. But if the court sides with DOJ, then people who have health care conditions and purchase their coverage on the individual market could find insurers refusing to offer them an insurance plan the next year. If they are offered a plan, the insurer will charge them more – either to discourage them from enrolling or to cover all the health care costs the insurers expects them to utilize. Basically, the decision would force people with existing medical conditions to cover their own health care costs unless they are eligible for an employer plan or a public program, like Medicaid or Medicare.

Q4: Are there medical professional groups speaking out against the court filing and if so, what is their argument?

A4: Many medical professional groups, including the American Medical Association, are asking the Administration to reconsider their position on this case. In a letter released by six major medical associations, providers said “The elimination of these protections could result in millions of people facing limited access to health care coverage and higher cost as a result of insurers being allowed to return to discriminatory coverage and pricing practices.”

Q5: The court challenge, according to documents, could not only disrupt coverage for people with pre-existing conditions, but could create obstacles in obtaining open market insurance. Is this true?

A7: If the courts side with Texas and the 20 state attorneys general, then all of the ACA could be repealed. This would people put at risk of losing coverage in the individual market as well as a roll back of Medicaid expansions and a loss of protections in group insurance – such as a total ban on pre-existing condition exclusions and the elimination of annual and lifetime limits on coverage. If the courts side with the DOJ memo, some of the ACA will remain, including the Medicaid expansions. But people starting new jobs could also face potential lock outs of pre-existing condition coverage. Those shopping on the individual market could find they only have access to insurance if they are healthy, and even then may be charged significantly more if they are not healthy enough.

Q6: Recent events have brought up accusations of politicizing within the judicial system. Has politics crossed over into health care and does that bode well for Americans with chronic illness?

A6: Politics crossed into health care decades ago. Unfortunately, this at times has kept some patient advocacy groups from participating in the advocacy and debates around access to affordable and adequate health care. But I think we have seen a change in the last decade where many patient organizations realize that they must advocate for access to health coverage if the patients they represent are going to receive the health care they need. As far as the judicial system, there are often concerns that judges bring political ideology to the bench. So far, some of the key decisions on the Affordable Care Act that could have undermined the entire law have made decisions in favor of the rule of law and have not shown courts supplanting political ideology for their role as judges or Justices.

Q7: Should patient advocacy groups and/or U.S. Pain volunteers wish to express their concerns relating to the court filing of the White House Administration, what actions can they take?

A7: The Administration claims the DOJ filing was a legal analysis, but there is evidence that it was a political decision – including most of the attorneys initially involved refusing to sign the brief and one long time career attorney resigning from DOJ. Advocacy groups and volunteers can always express their concerns with the Administration directly to the Administration, but one of the most effective way to express concerns is to make those concerns public by using social media and writing letters to the editor. Letters to the editor are a great way to get a patient voice into the media and also alert media publications that this is an issue people care about.

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